Citation Nr: 0837179
Decision Date: 10/29/08 Archive Date: 11/05/08
DOCKET NO. 06-07 162A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to an increased evaluation in excess of 10
percent for right wrist scaphoid, nonunion with collapse
and radiocarpal degeneration, status post proximal row
carpetomy.
2. Entitlement to a compensable evaluation for right ear
hearing loss.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Christopher Murray, Associate Counsel
INTRODUCTION
The veteran had active military service from January 1997 to
May 1998.
This case comes before the Board of Veterans' Appeals (Board)
on appeal of a August 2004 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Cleveland,
Ohio.
In July 2005, the veteran testified before a Decision Review
Officer at a hearing held at the RO. A transcript of the
hearing is of record.
FINDINGS OF FACT
1. The veteran's service-connected right wrist scaphoid,
nonunion with collapse and radiocarpal degeneration is
manifested by dorsiflexion limited to 25 degrees and
palmar flexion to 50 degrees with pain throughout the
range of motion. There is no competent evidence of
ankylosis of the right wrist or false movement of the
right radius.
2. The veteran's right ear hearing loss is productive of
Level I hearing acuity.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 10 percent for
right wrist scaphoid, nonunion with collapse and
radiocarpal degeneration have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.25,
4.71a, Diagnostic Code 5215 (2007).
2. The criteria for a compensable evaluation for right ear
hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 2002); 38 C.F.R. §§ 3.102, 4.85, Diagnostic Code
6100 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
Under the Veterans Claims Assistance Act (VCAA), when VA
receives a complete or substantially complete application for
benefits, it must (1) notify the claimant of the information
and evidence not of record that is necessary to substantiate
a claim, (2) which information and evidence VA will obtain,
(3) and which information and evidence the claimant is
expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). See
also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II).
Regarding VCAA notice elements two and three, the Board finds
that April 2004, and March 2006 notice letters fully
satisfied these duty to notify provisions. 38 U.S.C.A. §
5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16
Vet. App. 183, 187 (2002). In this regard, these notice
letters requested that the veteran provide enough information
for the RO to request records from any sources of information
and evidence identified by the veteran. Finally, these
letters advised the veteran what information and evidence
would be obtained by VA, namely, records like medical
records, employment records, and records from other Federal
agencies.
During the pendency of this appeal, the Court of Appeals for
Veterans Claims (Court) issued a decision in Vazquez-Flores
v. Peake, 22 Vet. App. 37 (2008), which held that, for an
increased compensation claim, section 5103(a) requires first
element notice which, at a minimum, notifies the claimant
that he must provide, or ask the Secretary to obtain, medical
or lay evidence demonstrating a worsening or increase in
severity of the disability and the effect that worsening has
on his employment and daily life. Further, if the diagnostic
code under which the claimant is rated contains criteria
necessary for entitlement to a higher disability rating that
would not be satisfied by the claimant demonstrating a
noticeable worsening or increase in severity of the
disability and the effect that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the Secretary must provide at
least general notice of that requirement to the claimant.
Additionally, the claimant must be notified that, should an
increase in disability be found, a disability rating will be
determined by applying relevant diagnostic codes, which
typically provide for a range in severity of a particular
disability from noncompensable to as much as 100 percent
(depending on the disability involved), based on the nature
of the symptoms of the condition for which disability
compensation is being sought, their severity and duration,
and their impact upon employment and daily life. The notice
must also provide examples of the types of medical and lay
evidence that the claimant may submit (or ask the Secretary
to obtain) that are relevant to establishing entitlement to
increased compensation - e.g., competent lay statements
describing symptoms, medical and hospitalization records,
medical statements, employer statements, job application
rejections, and any other evidence showing an increase in the
disability or exceptional circumstances relating to the
disability. Vazquez-Flores, 22 Vet. App. at 41.
In this case, the veteran was provided pertinent information
in the April 2004 VCAA notice letter. Specifically, the
April 2004 letter informed the veteran of the need to provide
on his own, or by VA, medical or lay evidence demonstrating a
worsening or increase in severity of the disability and the
effect that worsening has on the veteran's employment. He
was also told that should an increase in disability be found,
a disability rating will be determined by applying relevant
diagnostic code(s) from 38 Code of Federal Regulations, Part
4, and that his disability would be assigned a rating between
0 and 100 percent. Finally, the April 2004 letter provided
the veteran with examples of pertinent medical and lay
evidence that he may submit (or ask the Secretary to obtain)
relevant to establishing entitlement to increased
compensation.
The Board acknowledges that the April 2004 letter did not
make reference to specific diagnostic codes or applicable
criteria necessary to warrant an increased rating which might
not be evident from demonstrating a noticeable worsening or
increase in severity of the disability and the effect of that
worsening on his employment and daily life. However, the
veteran was provided notice of applicable rating criteria
involving specific measurements or testing results, namely,
range of motion and audiological testing, in the March 2005
statement of the case.
The Board also acknowledges the April 2004 letter did not
specifically inform the veteran that he must provide evidence
demonstrating the effect any worsening of his service-
connected disability has on his daily life. However, this
letter advised him that he may submit statements from persons
who have witnessed how his disability symptoms affect him.
The Board finds that the veteran could be reasonably expected
to understand the need to provide evidence regarding the
impact of his service-connected disability on his daily life,
as opposed to his employment, from this statement. Moreover,
the Board concludes that the veteran demonstrated actual
knowledge of the need to submit evidence regarding the impact
of his disability on his daily life during his July 2005 RO
hearing (veteran stated his wrist "is sore every day. I
have problems with weakness...because I can't grab on to things
like I should be able to...") Under these circumstances, the
Board finds that any VCAA notice error with respect to this
provision of first element notice is non-prejudicial to the
veteran, and that the Board may proceed with its decision.
See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) (all
VCAA notice errors are presumed prejudicial and require
reversal unless the VA can show that the error did not affect
the essential fairness of the adjudication, such as by
demonstrating that any defect was cured by actual knowledge
on the part of the claimant, that a reasonable person could
be expected to understand from the notice what was needed,
that a benefit could not have been awarded as a matter of
law, or perhaps where the claimant has stated that he or she
has no further evidence to submit, or where the record
reflects that VA has obtained all relevant evidence).
The Board notes that the April 2004 letter was sent prior to
the initial unfavorable agency decision in June 2004. The
notice provided to the veteran by this letter fully complied
with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. §
3.159(b).
In Vazquez-Flores, supra, the Court stated that "[n]othing
in law or common sense supports a conclusion that the Court
should put on blinders and ignore [the 'extensive
administrative appellate process'] or a conclusion that a
notice error prior to the initial decision by the Secretary
could not be rendered non-prejudicial when the full panoply
of administrative appellate procedures established by
Congress are provided to the claimant. It is well settled
that a remand is not warranted when no benefit would flow to
the claimant." Id. See also Bernard v. Brown, 4 Vet. App.
384, 394 (1993); Sabonis v. Brown, 6 Vet. App. 426, 430
(1994) (remands which would only result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran are to be avoided).
As a final matter, on March 3, 2006, the Court issued a
decision in Dingess v. Nicholson, 19 Vet. App. 473, 484
(2006), which held that the VCAA notice must include notice
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded. The March 2006 VCAA letter provided such notice.
In light of the above, the Board finds that nearly all notice
required by VCAA and implementing regulations were furnished
to the veteran. For those elements of notice that the
veteran was not specifically informed, the Board has
demonstrated that any defective predecisional notice error
is non-prejudicial in terms of the essential fairness of the
adjudication. and that no useful purpose would be served by
delaying appellate review to send out additional VCAA notice
letters.
VA must also make reasonable efforts to assist the appellant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claims.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007).
The veteran's service treatment records have been associated
with the claims file. Post-service VA treatment records and
reports have also been obtained. The veteran has not
identified any additional records that should be obtained
prior to a Board decision. He was afforded VA examinations
in July 2004 and October 2005. See 38 U.S.C.A. § 5103A(d);
see also 38 C.F.R. § 3.159 (c)(4) (2007); Wells v. Principi,
327 F. 3d 1339, 1341 (Fed. Cir. 2002).
In light of the foregoing, the Board is satisfied that all
relevant facts have been adequately developed to the extent
possible; no further assistance to the appellant
in developing the facts pertinent to the issue on appeal is
required to comply with the duty to assist. 38 U.S.C.A.
§§ 5103 and 5103A; 38 C.F.R. § 3.159.
Analysis
Under 38 U.S.C. § 7104, Board decisions must be based on the
entire record, with consideration of all the evidence. In
Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held,
in pertinent part, that the law requires only that the Board
address its reasons for rejecting evidence favorable to the
claimant. The Federal Circuit has also held that the Board
must review the entire record, but does not have to discuss
each piece of evidence. Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000).
Disability evaluations are determined by applying the
criteria set forth in the VA Schedule for Rating Disabilities
(Rating Schedule), found in 38 C.F.R. Part 4. The Board
attempts to determine the extent to which the veteran's
service-connected disability adversely affects his ability to
function under the ordinary conditions of daily life, and the
assigned rating is based, as far as practicable, upon the
average impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.10
(2007). Regulations require that where there is a question
as to which of two evaluations is to be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating;
otherwise, the lower rating will be assigned.
Where, as in the present case, entitlement to compensation
has already been established and increase in disability
rating is at issue, present level of disability is of primary
concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
Therefore, although the Board has thoroughly reviewed all
evidence of record, the more critical evidence consists of
the evidence generated during the appeal period. Further,
the Board must evaluate the medical evidence of record since
the filing of the claim for increased rating and consider the
appropriateness of a "staged rating" (i.e., assignment of
different ratings for distinct periods of time, based on the
facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see
also Fenderson v. West, 12 Vet. App. 119 (1999).
I. Right Wrist Scaphoid
The veteran is currently service-connected for right wrist
scaphoid, nonunion with collapse and radiocarpal
degeneration, status post proximal row carpetomy, evaluated
as 10 percent disabling pursuant to 38 C.F.R. § 4.71a,
Diagnostic Code 5215 (2007). The veteran contends that right
wrist disability have increased in severity. As such, he
contends that he is entitled to a disability rating in excess
of 10 percent for his right wrist disability.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in the parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination, and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part that becomes
painful on use must be regarded as seriously disabled. 38
C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App.
202, 206-07 (1995). Painful, unstable, or malaligned joints,
due to healed injury, are entitled to at least the minimum
compensable rating for the joint. 38 C.F.R. § 4.59. The
factors involved in evaluating, and rating, disabilities of
the joints include weakness; fatigability; incoordination;
restricted or excess movement of the joint, or pain on
movement. 38 C.F.R. § 4.45.
In evaluating upper extremity disability, it is often
necessary to distinguish the predominant or major upper
extremity from the minor upper extremity, as such a
distinction may affect the criteria for a particular level of
impairment. 38 C.F.R. § 4.69. In this case, the record
reveals that the veteran is right handed.
Limitation of motion of the wrist is rated under 38 C.F.R. §
4.71a, Diagnostic Code 5215. A 10 percent rating is
warranted for limitation of motion of the wrist (major or
minor), such that dorsiflexion is less than 15 degrees or
palmar flexion is limited in line with the forearm. This is
the highest schedular disability rating available under
Diagnostic Code 5215. See 38 C.F.R. § 4.25 (2007). As the
veteran is currently in receipt of the highest available
evaluation under Diagnostic Code 5215, further discussion of
limitation of motion of the right wrist is not necessary.
Higher ratings are available under 38 C.F.R. § 4.71a,
Diagnostic Code 5214; however, that provision requires the
presence of ankylosis, a manifestation not present in the
veteran's case. Ankylosis is "immobility and consolidation
of a joint due to disease, injury, surgical procedure."
Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders
Encyclopedia and Dictionary of Medicine, Nursing, and Allied
Health at 68 (4th ed. 1987)). Because the veteran is able to
move his right wrist, a rating in excess of 10 percent is not
warranted for his right wrist scaphoid under Diagnostic Code
5215.
Although there are other diagnostic codes that potentially
relate to impairment of the wrist, after reviewing these
alternative provisions, the Board can find no basis on which
to assign an increased rating for the veteran's right wrist
disability. For example, there is no evidence of peripheral
nerve impairment so as to warrant application of Code 8515.
In addition, while there is evidence of nonunion of the
scaphoid, there is no evidence of false movement. As such, a
higher rating is not applicable under Diagnostic Code 5212
for impairment of the radius.
The Board acknowledges that the veteran himself has claimed
his service-connected right wrist disorder warrants an
evaluation in excess of 10 percent. However, the Board notes
that as a layman, the veteran has no competence to give a
medical opinion on the diagnosis or etiology of a condition.
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently,
lay assertions of medical diagnosis or etiology cannot
constitute evidence upon which to grant the claim for service
connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995).
As a final note, the Board has also considered the
possibility of referring this case to the Director of the VA
Compensation and Pension Service for potential approval of an
extraschedular rating for the veteran's service-connected
right wrist disability. The evidence does not show, however,
that there is such an exceptional or unusual disability
picture, with such related factors as marked interference
with employment or frequent periods of hospitalization, as to
render impractical the application of the regular schedular
standards. 38 C.F.R. § 3.321(b)(1). Rather, the record
shows that the veteran has not been hospitalized for
treatment of his right wrist disability. While the veteran
has submitted evidence of impaired employment, it must be
emphasized that the disability ratings represent as far as
can practicably be determined the average impairment in
earning capacity as a result of diseases or injuries
encountered incident to military service and their residual
conditions in civilian occupations. Generally, the degrees
of disability specified are considered adequate to compensate
for considerable loss of working time from exacerbations of
illnesses proportionate to the severity of the several grades
of disability. 38 C.F.R. § 4.1. Absent evidence to the
contrary, the Board finds no reason for further action under
38 C.F.R. § 3.321(b)(1).
For the reasons set forth above, the Board finds that the
preponderance of the evidence is against the veteran's claim
of entitlement to an evaluation in excess of 10 percent for
right wrist scaphoid, nonunion with collapse and radiocarpal
degeneration. Consequently, the benefit-of-the-doubt rule
does not apply and the veteran's claim must be denied. 38
U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet.
App. 49, 55 (1990).
II. Right Ear Hearing Loss
The veteran's service-connected right ear hearing loss has
been evaluated as noncompensable under the provisions of
Diagnostic Code 6100. See 38 C.F.R. § 4.85 (2007). In
evaluating hearing loss, disability ratings are derived by a
mechanical application of the ratings schedule to the numeric
designations assigned after audiometric evaluations are
rendered. See Lendenmen v. Principi, 3 Vet. App. 345, 349
(1992). The ratings schedule provides a table for ratings
purposes (Table VI) to determine a Roman numeral designation
(I through XI) for hearing impairment. Table VII is used to
determine the percentage evaluation by combining the Roman
numeral designations for hearing impairment in both ears. See
38 C.F.R. § 4.85.
When the pure tone threshold at each of the four specified
frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55
decibels or more, Table VI or Table VIa is to be used,
whichever results in the higher numeral. 38 C.F.R. §
4.86(a). Additionally, when the pure tone threshold is 30
decibels or less at 1,000 Hertz, and 70 decibels or more at
2,000 Hertz, Table VI or Table VIa is to be used, whichever
results in the higher numeral. Thereafter, that numeral will
be elevated to the next higher numeral. 38 C.F.R. § 4.86(b).
Turning to the record, on the audiological evaluation in
October 2005, pure tone thresholds for the right ear, in
decibels were as follows:
HERTZ
500
1000
2000
3000
4000
15
20
25
60
65
Speech audiometry revealed speech recognition ability of 60
percent in the right ear.
Entering the average pure tone thresholds and speech
recognition abilities into Table VI reveals the highest
numeric designation of hearing impairment for the right ear
is V. See 38 C.F.R. § 4.86(a). Since the veteran's left ear
is not service-connected for hearing loss, the Board will
assign a numeric designation of I pursuant to 38 C.F.R. §
4.85(f) for purposes of determining the veteran's disability
evaluation from Table VII. Entering the category
designations for each ear into Table VII results in a zero
percent disability rating under Diagnostic Code 6100.
The Board acknowledges the veteran's statements that he is
entitled to an evaluation in excess of zero percent for his
right ear hearing loss. However, in determining the actual
degree of disability, an objective examination is more
probative of the degree of the veteran's impairment.
Furthermore, the opinions and observations of the veteran
alone cannot meet the burden imposed by the rating criteria
under 38 C.F.R. § 4.85, Diagnostic Code 6100 with respect to
determining the severity of his service-connected left ear
hearing loss disability. See Moray v. Brown, 2 Vet. App.
211, 214 (1993); see also Espiritu v. Derwinski, supra; 38
C.F.R. § 3.159(a)(1) and (2) (2007).
The Board finds that there is no audiological evidence of
record to support a compensable rating for the veteran's
right ear hearing loss. The preponderance of the evidence is
against his claim for a compensable rating. Consequently,
the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. §
5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55
(1990).
ORDER
An evaluation in excess of 10 percent for right wrist
scaphoid, nonunion with collapse and radiocarpal
degeneration, status post proximal row carpetomy, is denied.
A compensable evaluation for right ear hearing loss is
denied.
____________________________________________
K. Parakkal
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs